2014 (5) TMI 132 - HC - VAT and Sales Tax

Dismissal of petition for failure to exhaust statutory remedies; Importance of following proper legal procedures

The Court dismissed the petition, emphasizing that the petitioner should have pursued statutory remedies such as filing appeals against assessment orders ... Quashment of Notice - Recovery certificate – Alternate Remedy of Appeal – Section 55 of the U.P. VAT Act, 2008 - Unchallenged assessment order – Held that:- It transpires from the records of the writ petition that earlier a recovery certificate dated 9 November 2011 was issued by AO w.r.t. 2007-08 relating to the period from 1 January 2008 to 31 March 2008 - Assessee instead of filing an appeal u/s 55 of the U.P. VAT Act, 2008 filed a writ petition - This petition was disposed of by the judgment and order dated 17 February 2012 - It was left open to assessee to file objections in response to the notice (actually a recovery certificate) dated 9 November 2011 - Assessee filed objections before the Commissioner which have been decided against assessee by the order dated 21 January 2014. It is clear that the petitioner had not challenged assessment order pursuant to which the recovery certificate had been issued before Appellate Authority - In writ petition all that was prayed was that an appropriate direction should be issued for not recovering the tax for the Assessment Year 2007-08 claim under the recovery certificate dated 9 November 2011 -The Court, had only left it open to the petitioner to file his objections and if there was a statutory remedy of an appeal, assessee should have availed of that remedy - Even the subsequent notice dated 15 March 2010 which has been issued u/s 28 for 2009-10, assessee has been called upon to file his reply - Assessee can file a reply to aforesaid notice and if an assessment order is passed, which does not satisfy assessee, he would have an adequate remedy of filing an appeal – Decided in favour of Assessee. Issues:1. Quashing of order dated 21 January 2014 by Commissioner, Commercial Tax, U.P. Lucknow for Assessment Year 2007-08.2. Quashing of notice dated 15 March 2014 by Commercial Tax Officer, Sector 1, Meerut for Assessment Year 2009-10.3. Compliance and implementation of notification dated 14.11.2000 under U.P. Trade Tax Act, 1948 saved by Section 81 of U.P. Value Added Tax Act, 2008.4. Liability to pay Value Added Tax for the petitioner.5. Appropriate direction for not recovering tax for Assessment Year 2007-08 claim under recovery certificate dated 9 November 2011.Analysis:1. The petitioner sought quashing of the order dated 21 January 2014 by the Commissioner, Commercial Tax, U.P. Lucknow for Assessment Year 2007-08. The petitioner had filed a writ petition earlier against a recovery certificate issued by the Assessing Officer. The Court disposed of the petition by allowing the petitioner to file objections, which were later rejected by the Commissioner. The Court emphasized that the petitioner should have availed the statutory remedy of an appeal under the U.P. Value Added Tax Act, 2008.2. Additionally, the petitioner sought the quashing of the notice dated 15 March 2014 issued by the Commercial Tax Officer for Assessment Year 2009-10. The Court highlighted that the petitioner could file a reply to this notice and avail the remedy of filing an appeal if dissatisfied with the assessment order. The Court declined to entertain this petition regarding the notice for Assessment Year 2009-10.3. The petitioner prayed for compliance and implementation of a notification under the U.P. Trade Tax Act, 1948 saved by the U.P. Value Added Tax Act, 2008. The petitioner contended that they were not liable to pay Value Added Tax. The Court allowed the petitioner to file objections within two weeks against the demand notice dated 9 November 2011, with a direction for the competent authority to decide the objections expeditiously.4. The Court noted that the petitioner did not challenge the assessment order before the Appellate Authority but only sought a direction to halt tax recovery for Assessment Year 2007-08. The Court emphasized that if an appeal is filed, the Appellate Authority should decide independently without being influenced by the Commissioner's order.5. The Court dismissed the petition, stating that the petitioner should have pursued statutory remedies like filing appeals against assessment orders instead of seeking directions through writ petitions. The petitioner was advised to follow the appropriate legal procedures for redressal.